On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-02-0165-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Fuentes and Chambers.
A jury convicted defendant, Samuel Sparks, of first-degree conspiracy to commit murder and second-degree aggravated assault. Following the verdict, the trial court set aside defendant's conspiracy conviction. The court sentenced defendant to a twenty-year prison term, with an eighty-five percent period of parole ineligibility.
On appeal, defendant raises the following legal arguments:
POINT I: THE CONVICTIONS SHOULD BE REVERSED BECAUSE THE MOTION TO SEVER THE CRIMES REGARDING THE TWO INCIDENTS SHOULD HAVE BEEN GRANTED, AND FAILURE TO DO SO PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT II: THE STATE SHOULD NOT HAVE BEEN PERMITTED TO MAKE GANG REFERENCES OVER DEFENSE OBJECTION, AND THESE REFERENCES PREJUDICED DEFENDANT.
POINT III: THE PHONE CONVERSATION BETWEEN DEFENDANT AND HECTOR ACEVEDO SHOULD NOT HAVE BEEN ADMITTED, AND PROSECUTOR SHOULD NEVER HAVE SUBSTANTIVELY USED  ACEVEDO'S STATEMENT IN THAT CONVERSATION.
POINT IV: THE PROSECUTOR'S DELIBERATE REFERENCE TO DEFENDANT'S ALLEGED DRUG POSSESSION DENIED HIM A FAIR TRIAL.
POINT V: REFERENCES TO DEFENDANT BEING AN INFORMANT AND BEING FAMILIAR WITH POLICE OFFICERS DEPRIVED HIM OF HIS RIGHT TO A FAIR TRIAL.
POINT VI: THE STATE IMPROPERLY NEUTRALIZED ITS OWN WITNESS ON DIRECT EXAMINATION, BRINGING IN A PRIOR STATEMENT BEFORE ALLOWING THE WITNESS TO TESTIFY TO HER RECOLLECTION.
POINT VII: REFERRENCE TO THE COCONSPIRATOR'S PRIOR ARRESTS PREJUDICED DEFENDANT.
POINT VIII: INSTANCES OF PROSECUTORIAL MISCONDUCT CUMULATIVELY DENIED DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT IX: DEFENDANT'S SENTENCE TO THE MAXIMUM TERM UNDER THE PERMISSIVE EXTENDED TERM WAS EXCESSIVE.
Primarily because we find merit to his argument that the State's numerous gang references precluded him from receiving a fair trial, we reverse defendant's conviction.
In the early morning hours of August 4, 2003, Darby Alston was asleep in bed with his fiancée, Kinusha Davis, in his apartment at 324 Market Street in Paterson. Davis woke up to the sound of gunshots around 2:30 a.m. and saw someone standing over her with a gun. Alston had been shot. Davis described the shooter as wearing black jeans, a long black coat and black hat, with a red bandana hanging from his waist. She estimated him to be approximately five-foot-six to five-foot-seven. She was unable to identify him because his face was covered.
Gregory Myers, who lived nearby, was home during those early morning hours and saw a man wearing a hoodie walk into 324 Market Street. About ten to fifteen seconds later, Myers heard three or four gunshots and then saw the man in the hoodie leave the building. He described the man as approximately five-foot-ten to five-foot-eleven, wearing a red bandana across his face.
Richard Edmonds was on Market Street selling drugs at the time of the shooting. He saw a black man with a stocky build and wearing a black hoodie and a red bandana across his face walking toward Alston's building "like [he was] angry." About two minutes after the man entered the building, Edmonds heard a bang, followed by three successive shots. Moments later, he saw the man leave. Edmonds described the man as five-foot-ten to five-foot-eleven. He stated that the man's build, walk and dark skin tone resembled Gerald Johnson, also known as "Black." He explained that Johnson has a distinctive walk, and the man in the black hoodie had the same walk, but faster and more aggressive.
Johnson and defendant were friends. There had been more than one altercation between them and Alston in the days preceding Alston's murder.
Pamela Drakeford testified that in the summer of 2003, she accompanied defendant and his girlfriend, Jackie, to 324 Market Street to get tattoos, where an altercation broke out between defendant and Alston. Alston had told defendant that his friend Johnson was a "dead man walking," at which point defendant ran out and "[got] some of his boys," including Johnson. When they returned, Alston had a baseball bat and another man, identified as Richard Edmonds, had a handgun. A fight ensued, during which Alston swung a baseball bat at Johnson. According to a witness, Alston "knocked [defendant and Johnson] out, and it was over." Although Drakeford could not remember the date of the incident, defendant later told the police that the fight occurred on July 31, 2003.
Kinusha Davis witnessed a fight over drug territory between Alston, defendant and Johnson several days before Alston's murder. She stated that after defendant and Johnson told ...